Could AIPAC-related sentence chill free-speech?

Ron Kampeas - JTA - February 2, 2006

WASHINGTON — It was surprising enough that the judge quadrupled the prosecution’s recommended sentence for Lawrence Franklin, from three years to more than 12.

But the true bombshell at the Jan. 13 sentencing of the former Pentagon analyst, who is at the centre of the case involving pro-Israel lobbyists and classified information, came as lawyers were shutting their briefcases.

That’s when U.S. District Judge T.S. Ellis III told the court in Alexandria, Va., that he believed civilians are just as liable as government employees under laws governing the dissemination of classified information.

“Persons who have unauthorized possession, who come into unauthorized possession of classified information, must abide by the law,” Ellis said. “That applies to academics, lawyers, journalists, professors, whatever.”

It was difficult to say whether Ellis was thinking out loud or pronouncing his judicial philosophy. But if those are Ellis’ jury instructions in April, when two former staffers of the American Israel Public Affairs Committee (AIPAC) go on trial, the implications could have major consequences – not just for Steve Rosen and Keith Weissman, but for how Americans consider national security questions.

Defence lawyers for Rosen and Weissman have joined a free speech watchdog in casting the case as a major First Amendment battle.

“The implications of this prosecution to news gatherers and others who work in First Amendment cases cannot be overstated,” lawyers for the former AIPAC staffers wrote in last month in support of an application from the Reporters Committee for the Freedom of the Press to file an amicus brief.

The case is believed to be the first ever to apply a World War I-era statute that criminalizes the dissemination of classified information by U.S. civilians.

Franklin pleaded guilty to a similar statute barring government employees from leaking classified information. That statute has rarely been prosecuted – the last successful prosecution experts can recall was in the 1980s.

JTA has learned that the defence team for Rosen and Weissman last month filed a brief by Viet Dinh, the former assistant attorney general who was the principal drafter of the USA Patriot Act, arguing that federal prosecutors in the case were interpreting classified information protections too broadly.

Franklin, a mid-level Iran analyst at the Pentagon, admitted to leaking information to Rosen and Weissman in 2003 because he wanted his concerns about the Iranian threat to reach the White House.

His Pentagon colleagues were focused on Iraq, and Franklin believed AIPAC could get his theories a hearing at the White House’s National Security Council. He also leaked information to Naor Gilon, the former chief political officer at the Israeli Embassy.

By the summer of 2004, government agents co-opted Franklin into setting up Rosen and Weissman. He allegedly leaked classified information to Weissman about purported Iranian plans to kill Israeli and American agents in northern Iraq.

Weissman and Rosen allegedly relayed that information to AIPAC colleagues, the media and Gilon. AIPAC fired the two men in March 2005.

In sentencing Franklin, Ellis described the former Pentagon analyst’s motives as “laudable,” but said his motives were beside the point.

“It doesn’t matter that you think you were really helping,” Ellis said. “That arrogates to yourself the decision whether to adhere to a statute passed by Congress, and we can’t have that in this country.”

Those views could be bad news for Rosen and Weissman, who hoped to rest part of their defence on an altruistic desire to save lives.

It also suggests Ellis believes government statutes are sacrosanct, however little they’ve been used. That’s what concerns free-speech advocates.

“These provisions of the Espionage Act are widely recognized in the legal literature as incoherent,” said Steven Aftergood, head of the government secrecy project for the Federation of American Scientists, a nuclear watchdog that relies on leaks for its information.

“We do not arrest and charge every reporter who comes into possession of classified information. We do not arrest people who receive leaks of classified information. We never have,” he said. “For the judge to suggest otherwise is quite shocking.”

Lucy Dalglish, the Reporters Committee executive director, described the case as “terribly important.”

“If we had a situation where journalists can be punished for receiving information, hello police state,” she said.

Franklin’s sentence seemed exceptionally tough, given the prosecution’s tentative agreement to recommend a three-year sentence if Franklin co-operated against Rosen and Weissman.

But Ellis’ sentence – abiding by strict government sentencing guidelines – was mainly a technicality, since Franklin is not going to go to jail until his co-operation with the prosecution is complete.